Opinion
ID #: 9705002598.
Submitted: March 31, 2000.
Decided: June 30, 2000.
Upon Defendant's Motion for Judgment of Acquittal — DENIED Upon Defendant's Motion for a New Trial — GRANTED
John S. Malik, Esquire, 100 East 14th Street, Wilmington, Delaware, Attorney for Defendant.
Daniel R. Miller, Esquire, Carvel State Office Building, 820 N. French Street, 7th Floor, Wilmington, Delaware, 19801. Deputy Attorney General for the State.
ORDER
During his jury trial for possession with intent to deliver cocaine, Defendant made timely motions for acquittal. After the verdict, Defendant renewed his motions. A transcript was prepared, followed by briefing.
Defendant tacitly concedes his conviction for possession of cocaine, but he argues that the State's evidence as to intent to deliver was insufficient. Alternatively, Defendant asks for a new trial based on uncertainty surrounding events that took place during the last half hour of the jury's deliberations.
I.
At 10:00 p.m. on May 7, 1997 the police were doing surveillance in east Wilmington, in an area called "The Strip," a known drug "hotspot." The surveillance team noticed Defendant's car because it was lurching and moving erratically. When they "ran the car's tag" the police learned that it was suspended. The surveillance team called for marked police cars in order to stop Defendant. Before a marked car arrived, however, the car pulled into a parking lot and Defendant got out. The surveillance team confronted Defendant on foot and "patted him down."
The pat down produced $981 in a wad and a total of 2.35 grams of crack cocaine in two, small plastic bags. The resulting search of Defendant's car produced no physical evidence. The police found no scales, no weapon, no cutting agent, no packaging materials. They also found no crack pipe or other drug paraphernalia and Defendant appeared calm and sober. In other words, Defendant did not appear as if he had used crack recently and he did not have at hand the means to smoke the crack in his possession.
At Defendant's trial, the State called a well-qualified drug officer as an expert to establish Defendant's intent to deliver. The expert testified that the place where Defendant was spotted was "probably at the top of surrounding communities which are known hot spots" for drugs, including crack cocaine. The expert further testified that the "prime hours" for drug sales in Wilmington are from "right after school lets out," which he testified is around 4:00 p.m., until "around midnight."
The expert said that when drug dealers are on the street they typically do not carry "paraphernalia, like scales or packaging materials." the packaging at "a safe house or a storage facility." "generally" They usually do Furthermore, drug dealers carry money "in one lump sum, but broken down into stacks or increments of $100 stacks." The testimony about stacked cash was particularly significant because Defendant's cash apparently was stacked in the odd way that the expert said drug dealers generally stack their cash. The expert opined that the amount of crack found in Defendant's pocket would last a single user approximately thirty-six hours.
On cross-examination, the expert agreed that more people buy drugs than sell them. The expert agreed that many indicia of intent to deliver were not present in this case. For example, the quantity was not huge. There was no suspicious activity, much less an observed transaction. There were no incriminating statements. There was no paraphernalia. The expert also testified that while a crack pipe is necessary to smoke crack cocaine and none was found, an experienced drug user could fashion a crack pipe quickly and easily out of ordinary materials. Defendant did not testify. For its part, the defense primarily called other witnesses to establish that Defendant owned and operated a car washing business, which would account for his being abroad with almost $1,000 cash in his pocket. Basically, the defense tried to portray Defendant as an honest business man with a serious, personal drug problem. To rebut the defense, the State introduced evidence tending to establish that Defendant's supposedly legitimate business paid no taxes, did little banking or credit card business and operated primarily on cash. The State's evidence suggested that Defendant's legitimate business was a front.
II.
The jury began deliberating shortly after 10:00 a.m. It sent out a note at around 12:30 p.m. After the Court answered the note, the jury resumed deliberations until 4:05 p.m. Then the jury sent a second note, which read:
The jury has decided, at this time, we are deadlocked
1. [Possession With Intent To Deliver], Hung 6 + 6
2. [Maintaining A Vehicle For The Use of Controlled Substances], Undecided-we feel we need to determine # 1's answer before we vote on # 2
3. [No Proof of Insurance], Guilty as charged
In response to the jury's second note, the Court assembled counsel and discussed the situation on the record. At approximately 4:15 p.m. the Court sent the bailiff to bring the jury into the courtroom. The bailiff returned, however, and reported that the jury said it was making progress. Accordingly, at 4:17 p.m. the Court recessed to await further word from the jury. Approximately 15 minutes later the jury announced that it had a verdict. Before taking the verdict, the Court did not refer to the jury's second note. The Court simply thanked the jury for its service and instructed the clerk to take the verdict.
The verdict was guilty as to Possession With Intent to Deliver a Controlled Substance, not guilty as to Maintaining a Vehicle for the Use of Controlled Substances and guilty as to No Proof of Insurance. The jury was polled individually and the verdict was unanimous.
III.
At least with respect to Defendant's intent to deliver, the State's evidence was not overwhelming. Nevertheless, the Court is satisfied under the current standard of review, that a rational jury could have found, beyond a reasonable doubt, the intent to deliver.
Tribbett v. State, Del. Supr., No. 375, 1990, Walsh, J. (Feb. 3, 1992) (intent to deliver found where Defendant not in possession of paraphernalia associated with drug use and had drugs in units not economical for personal use); See also Malloy v. State, Del. Supr., 462 A.2d 1088 (1983) (proper to infer intent to deliver from totality of the record); Holden v. State, Del. Supr., 305 A.2d 320 (1973) (possession of 25.5 grams of uncut heroin, $1,153 in cash and small scales sufficient to infer intent to deliver): Williams v. State, Del. Supr., 286 A.2d 756 (1971) (11 bags of heroin and $124 in cash found on Defendant sufficient to infer intent to deliver). But see Renzi v. State, Del. Supr., 320 A.2d 711 (1974) (large amounts of drug paraphernalia insufficient to infer intent to deliver where Defendant was admitted drug addict); Redden v. State, Del. Supr., 281 A.2d 490 (1971) (intent to deliver not found despite possession of 12 ounces of marijuana, 29 "nickel bags" of marijuana and 84 empty packets).
Viewed in the light most favorable to the State, at 10:00 p.m. Defendant drove to and stopped his car in an area known for illegal drug activity. Defendant was carrying a thirty-six hour supply of crack in two baggies. He also was carrying almost $1,000 in cash, which was sorted in a fashion that was characteristic of drug dealing. At the same time, Defendant was not under the influence of crack and he did not have the means to use the crack that was in his pocket. While the State's evidence could have supported the inference that Defendant merely went to "The Strip" in order to buy drugs, the State's evidence makes out a prima facie case for possession with intent to deliver.
The evidence presented by Defendant hardly helped his case. Frankly, the defense witnesses sounded like cock-and-bull. The defense's incredibility lent weight to the State's contention that Defendant was caught with the proceeds from earlier drug transactions and the remains of his original drug inventory. Nothing truly supported his argument that he merely was a user.
IV.
While the Court views the evidence on Defendant's intent to deliver as less than overwhelming, yet sufficient, the Court is more troubled by the last half hour of the jury's deliberations, the way that the Court handled the second note and the way it took the jury's verdict.
As presented above, after deliberating six hours, with only a short smoking break, the jury announced that it was deadlocked "6 + 6" on the possession with intent to deliver charge. Without an Allen jury instruction, or other intervention by the Court, six jurors abandoned their view that Defendant was not guilty and they returned a verdict at 4:30 p.m. Meanwhile, when the verdict was taken, no reference was made to the jury's second note nor to the late hour.
The Court agrees with the State that there are potentially reasonable explanations for the jury's behavior. It may have been, as the State suggests, that somehow the six jurors in favor of conviction got through to the six jurors in favor of acquittal. As discussed above, there were good arguments that the jurors in favor of conviction could have made and it is possible that the most persuasive argument was not injected into the deliberations until the end.
Even so, Defendant faces fifteen years in prison. His conviction turns on the question of his intent. The evidence in that regard was close enough that the jury was evenly divided and "hung" up to one half hour before it found Defendant guilty. While giving the Allen charge may not have been required, as Defendant contends it was, the Court, at least, should have read the second note into the record in the jury's presence or the Court might have inquired generally as to whether any juror felt compelled to return a verdict due to time constraints. have done more than it did. The Court should In summary, this case's unusual dynamics, including the lead charge's seriousness, the issue on which the verdict turned, the strength of the State's case, the unusual note from the jury, the timing of the note in relation to the verdict, the verdict's relation to the time of day, the Court's failure to confront the jury with the note before taking the verdict and the combined effect of all of those factors undermine the Court's confidence in the regularity of Defendant's conviction.
V.
For the foregoing reasons, upon the State's prompt request, the Court will enter a conviction for the lesser-included Possession of Cocaine. Otherwise, the Court will grant Defendant's Alternative Motion for a New Trial on Possession with Intent to Deliver Cocaine and set a new trial date on that charge. Finally, under the circumstances, the Court will not schedule another case review, but the parties have leave to enter a plea, including a Rule 11(e)(1)(c) plea, on the plea by appointment calendar, as long as the matter is scheduled promptly.
IT IS SO ORDERED.